Ted’s Last Shenanigan

I am genuinely sorry that Senator Ted Kennedy is suffering. I have never been an admirer, but I have never wished him personal misfortune. Whatever you think of his policies, he has cut a great figure in American politics. It is a shame, then, that what may be his last public act is shameful. From the Wall Street Journal:

Senator Ted Kennedy, who is gravely ill with brain cancer, has sent a letter to Massachusetts lawmakers requesting a change in the state law that determines how his Senate seat would be filled if it became vacant before his eighth full term ends in 2012. Current law mandates that a special election be held at least 145 days after the seat becomes available. Mr. Kennedy is concerned that such a delay could leave his fellow Democrats in the Senate one vote short of a filibuster-proof majority for months while a special election takes place.

The journal points out that the present system for filling a senate vacancy is a result of a previous change that Kennedy himself is responsible for.

What Mr. Kennedy doesn't volunteer is that he orchestrated the 2004 succession law revision that now requires a special election, and for similarly partisan reasons. John Kerry, the other Senator from the state, was running for President in 2004, and Mr. Kennedy wanted the law changed so the Republican Governor at the time, Mitt Romney, could not name Mr. Kerry's replacement.

Kennedy managed to take the power to appoint a Senate successor away from the Governor when Mitt Romney held that office and it looked like John Kerry might vacate his seat for the White House. Now that the Governor is a Democrat and Kennedy cannot hold on long enough to vote for healthcare reform, he wants to change it back. This is a blatant case of manipulating the election procedures to ensure a partisan outcome. That's dirty politics by anyone's standards.

It may be too blatant for the Mass. Legislature. The Boston Globe reports that state leaders are cool to Kennedy's proposal.

It is assumed that Kennedy's motives are all about healthcare reform. He is apparently unable to play any role in the process at this point. If he vacates his seat, that will be one less vote in the Senate and so no filibuster proof majority for the Democrats.

But there may be another reason why Kennedy wants the change. In a special election, a Republican might actually win. There is a gubernatorial election next year, and current polls show incumbent Governor Deval Patrick is facing a tight race. One poll shows moderate Republican Christy Mihos leading by five points. To be clear, I don't know what is going to happen in November of 2010. But off year elections tend to be bad for the party that owns the White House, and current trends suggest the possibility of Republican blowout. It would add insult to injury if healthcare reform failed due to Kennedy's absence and the seat he has held so long inherited by the GOP.

Still, that doesn't make his shenanigan look any better. Elections are contests, and when you change the rules in mid-game to favor one contestant, that's cheating. I am guessing that Kennedy won't get his rule change. Just right now, Massachusetts Democrats don't want to give the voters another reason to be irritated.

Comments

[KPC]

While no one could argue that the requested change in rules is not political and dependent on the fact that in Massachusetts the Democrats control both Houses of the legislature by huge margins.

This article goes a step to far in speculating that the reason is that in a special election the Republican might win. The fact is that Kennedy is not asking that there be no special election. He is asking that the Governor be allowed to appoint an interim Senator, who would represent the state during the 5 or more months it would take to have a special election.

There is something to be said for the state not losing one of its votes in the Senate for five months. You could say that this didn't bother Democrats in 2004, but the fact is that had things worked out, they would have started the process in early November and Senator Kerry could have voted if there were any close votes until he was sworn in as President - leaving just two months without a MA Senator.

[William]

If Kennedy was concerned about a lack of representation for his state, he should have resigned months ago, when he was no longer able to fulfill his obligations as a US Senator.

[FascistSocialist]

How is it dirty politics?

If a Democratic senator resigns, steps down, or otherwise leaves his post he should have the reasonable expectation that his seat will be filled with another democratic senator. Same for a Republican. There's nothing dirty about this.

[KB]

F.S.: I like the way you put that. A "Democratic senator" has this expectation that his party owns his position if he steps down. If it were a Republican, I am guessing, you'd be screaming bloody murder.

But where on earth does this newly minted principle come from? Americans don't vote for parties, they vote for individuals. There has never been any such expectation. Republican governors who have the power can usually be counted on to appoint Republican replacements regardless of which party preciously held the seat, and vice-versa. No such expectation exists.

If you and I agreed to settle a matter by tossing a coin, and then I didn't like the outcome and insisted on changing the rules in mid-game to two out of three tosses, you would have no trouble recognizing that this is cheating. Kennedy wants to change the basic rules for the second time in five years to favor his side. That's a shenanigan.

[A.I.]

In Wyoming, a Republican Senator has the expectation that if he steps down or dies as did Craig Thomas in 07, a Republican will be appointed to replace him. It's the law and that is exactly what was done as a Democratic governor appointed Republican John Barrasso to replace Thomas. Massachusetts would have done well to instate a similar law back in 04. And, being as Democratic as Wyoming is Republican, it's probably what they should do now.

[KB]

A.I.: Thanks for the comment. It seems to me we are getting somewhere. As I understand it, Wyoming law allows the Republican Party to nominate three candidates to replace a Republican Senator who vacates, with the final decision belonging to the Governor. Presumably the same thing goes if a Democratic seat should be vacated. That strikes me as a reasonable procedure, but if a Republican Senator has a reasonable expectation that he or she will be replaced by another Republican, it's because that is the law and not because parties have a general right to succession. Apparently Matt Yglesias agrees with you that Massachusetts would have done well to adopt such a law. But it did not.

Imagine if the Wyoming legislature changed the law of a sudden in order to grab a Senate seat away from the Democrats. Everyone would know what that was.

[FascistSocialist]

But, that's not what happened, and that's not what's happening here, and you calling out a dead man is a pathetic attempt to score a last political point against a great American hero.

[KB]

FS: I did not see news of the Senator's passing before I posted my last comment, but that event doesn't change the facts. Kennedy wanted to change the law on the fly in order to manipulate the outcomes. If the other side did exactly the same thing you would be appalled.

[FascistSocialist]

Actually, as I've already stated, I would not be.

[A.I.]

The arguments here are likely moot. The last request of the last surviving Kenedy brother in a state that chose him as one of their senators for 47 years was that a law be changed so someone could be appointed to fill his seat until a special election is held. Happenstance has perhaps made that appointment key to realizing his greatest, career-long goal--establishing decent health care as a right rather than a privilege for every American citizen. I seriously doubt his request will not be honored.

Call it a shenanigan if you like KB, but this was not about retaining Senator Kennedy's seat for Democrats. It was about passing legislation near and dear to a man who spent years in its pursuit--not for personal gain, but because he believed it was right for America.

[KB]

A.I.: I take your last paragraph to say that the end justifies the means. Perhaps. But there is also such a thing as respect for procedure, and pulling this trick twice undermines that in a big way.

[A.I.]

"Procedure" is that a duly-elected body can change rules for any reason at any time as long as its actions are constitutional. So far as I've read, the only thing constitutionally questionable here is whether or not an appointee could be forbidden from also running for the office.

The majority of Massachusetts residents support health care reform along lines currently being considered by a margin of 53% to 35% according to a 8/24 Rasmussen poll: http://race42008.com/2009/08/24/poll-watch-rasmussen-massachusetts-survey-on-health-care-reform/ So the ends of the proposed rule change would then let their voice be fully represented in the Senate. That, I submit, should be an extremely important if not overriding factor in this debate.

[KB]

A.I.: If the legislature is going to change the succession rules any time it sees that it is to its advantage, why have election laws at all? Why not just let the legislative majority anoint the new Senator at will?

If having a voice the people in Mass. as quickly as possible is the important principle, then maybe Kennedy shouldn't have engineered the change last time round. Obviously it wasn't giving the people a voice that motivated Kennedy, it was keeping party control and winning on the floor of Congress.

Ted Kennedy's maneuvers weren't illegal, they were merely seedy. Once you have set the rules then you should play by them unless some more important consideration than partisan interest compels a change. Otherwise, one undermines confidence in those rules.